The Ethics of National Security Lawyering: A Response to Jeh Johnson

Abstract

In a February 2012 Dean's Lecture at Yale Law School titled National Security Law, Lawyers, and Lawyering in the Obama Administration, Jeh Johnson, then-General Counsel of the Department of Defense, undertook a strong defense of the Obama Administration's legal regime and policies supporting the U.S. military's counterterrorism efforts against al Qaeda and its associated forces. Scholars and lawyers of reasonable minds can-and ought to rationally debate many of the finer points of Johnson's legal analysis, including the limitations he argues are placed upon the United States government's use of force by certain precepts of international law. The goal in this short Essay, however, is not to consider the merits of Johnson's legal analysis. Instead, this Essay highlights the various roles that national security lawyers in the executive branch play and the variety of ethical responsibilities those roles entail. This Essay critically discusses Johnson's broad assertion that the government-and a fortiori, the government's lawyers-must guard against aggressive interpretations of its authorities, lest such interpretations discredit the government's efforts, provoke controversy, and invite challenge. This Essay argues that John- son's failure to contextualize this position-to specify whether it applies to all situations that a government lawyer faces, or whether it is limited only to certain contexts-may lead a government lawyer to fail to meet his or her core ethical responsibilities when serving as an advocate for the government in national security matters.